On February 14, 2024, the Second Senate of the Constitutional Court of Ukraine, at the plenary session delivered the Decision in the case upon the constitutional complaint of the Private Enterprise “General Construction Management” (hereinafter referred to as “the Enterprise”) on the compliance of Articles 321.2.2, 321.3 of the Commercial Procedure Code of Ukraine (hereinafter referred to as “the Code”) with the Constitution of Ukraine.
By this Decision, the Constitutional Court of Ukraine declared the provisions of Articles 321.2.2, 321.3 of the Commercial Procedure Code of Ukraine unconstitutional. They shall cease to be effective six months after the date of this Decision delivery.
The Enterprise appealed to the Constitutional Court of Ukraine to verify the compliance of Articles 321.2.2, 321.3 of the Code with Articles 3.2, 8, 9.1, 22.3, 55.1, 64.1 of the Constitution of Ukraine (constitutionality).
In accordance with Article 321.2.2 of the Code, an application for review of a court decision based on newly discovered or exceptional circumstances may be submitted “on the grounds specified in Articles 320.2.2, 320.2.3, 320.3 of this Code – not later than ten years from the date such court decision enters into force“.
According to Article 321.3 of the Code, “the terms specified in part two of this Article may not be renewed”.
The applicant claimed that in the case of application of the contested provisions of the Code, “a person is effectively deprived of the opportunity to appeal to the Supreme Court with an application for review of court decisions in his/her case, if the judgment of the European Court of Human Rights, which established a violation of the rights of such a person, was issued after the expiration of a ten-year period from the date of entry into force of the decisions of the national court in the case, since this term is not subject to renewal”.
In the complaint, the Enterprise stated that the application of the contested provisions of the Code by the courts of Ukraine led to “narrowing of the right to judicial protection”, “violation of the principle of legal certainty and the principle of fair deliberation as constituent parts of the principle of the rule of law”.
The subject of constitutional review in this case were Articles 321.2.2, 321.3 of the Code in that they make it impossible to submit, on the basis of a judgment of the European Court of Human Rights, an application for review of a court decision delivered by a national court, after ten years from the date of the latter entrance into force (Article 321.2.2) and renewal by the court of the specified ten-year term for submitting an application for review of a court decision delivered by the national court (Article 321.3).
When delivering the Decision, the Constitutional Court of Ukraine took into consideration its own legal positions, international human rights acts and the case law of the European Court of Human Rights.
Evaluating the constitutionality of Articles 321.2.2, 321.3 of the Code, the Constitutional Court of Ukraine primarily proceeds from the fact that the effective provision of the right to judicial protection is one of the guarantees of the implementation of other constitutional rights and freedoms, their strengthening and protection, in particular in the form of restoration in case of their violation. Therefore, there is a need for legislative regulation that would fully ensure effective and efficient implementation of the right to judicial protection.
In this decision, the Constitutional Court of Ukraine stated that the European Court of Human Rights recommends resumption of proceedings in national courts as an appropriate remedy if the previous proceedings did not meet the requirements of Article 6(1) of the Convention. By filing an application for review of a court decision in connection with the adoption of a judgment by the European Court of Human Rights, which establishes a violation of the Convention, the person in whose favour such a judgment was adopted seeks primarily to eliminate the consequences of the violation of his/her rights guaranteed by the Convention.
The Constitutional Court of Ukraine considers that the constitutional provisions oblige Ukraine to introduce effective and efficient regulation in the Code of Relations on the Review of Court Decisions in view of the adoption of a judgment by the European Court of Human Rights, which establishes a violation of the Convention.
The Code should provide for the provisions that will ensure the possibility of real and practical protection of rights and freedoms by reviewing decisions made by national courts in connection with the adoption of a judgment by the European Court of Human Rights that establishes a violation of the Convention. These provisions of the Code should not deprive a person of the right to exercise within a reasonable time the right to enforce a judgment of the European Court of Human Rights, which establishes a violation of the person's Convention rights by reviewing decisions delivered by national courts. In view of the foregoing, the ten-year term for filing an application for review of court decisions set forth in the Code makes a person dependent on circumstances beyond his/her control, namely, the timeframe for consideration of his/her application by the European Court of Human Rights.
In view of the above, the Constitutional Court of Ukraine concluded that Articles 321.2.2, 321.3 of the Commercial Procedure Code of Ukraine in that they make it impossible 1) to file applications for review of a court decision in connection with the adoption of a judgment by the European Court of Human Rights after ten years from the date of entry into force of the national court decision; 2) to renew the deadline for filing an application for review of a national court decision, are unconstitutional.
The Decision of the Constitutional Court of Ukraine is binding, final and may not be appealed.
